FPL, Broward Battle Nursing Home Subpoenas

Arguing they should not have to turn over documents, Florida Power & Light and Broward County have been battling subpoenas from a Hollywood nursing home where residents died after Hurricane Irma knocked out its air-conditioning system.

Attorneys for The Rehabilitation Center at Hollywood Hills served subpoenas on FPL and the county as part of a case in which the nursing home is challenging a state decision to revoke its license. The subpoenas seek documents about FPL’s power-restoration efforts during and after Hurricane Irma and records from the Broward County medical examiner’s office about the residents’ deaths.

Administrative Law Judge Mary Li Creasy issued an order Monday siding with Broward County’s arguments that it shouldn’t have to turn over the medical examiner’s records. The county and Creasy cited an ongoing criminal investigation into the deaths of the residents.

“Public policy weighs heavily against the release of the documents which would compromise an active police investigation,” Creasy wrote. “Further, respondent (the nursing home) has made no showing to date of exceptional necessity or extraordinary circumstances.”

But the nursing home filed a motion requesting that Creasy reconsider the order. The Agency for Health Care Administration revoked the nursing home’s license after eight residents died Sept. 13, three days after Irma knocked out the facility’s air-conditioning system. Police also said they were investigating the deaths of six other residents who died after evacuation.

In the motion asking for reconsideration, the nursing home said it needs the medical examiner’s records to fight the license revocation.

“This administrative complaint (by the Agency for Health Care Administration) seeks to terminate Hollywood Hills’ nursing home license based upon allegations that the deaths of these residents were caused by the `excessive heat’ in the nursing home.,” the motion said. “Hollywood Hills has a right to defend itself and to discover information collected by the government regarding the deaths of these residents before the government can strip it of its property rights.”

FPL, meanwhile, filed a request Thursday for a protective order that would shield it from having to turn over documents subpoenaed by the nursing home. With power out for three days after Irma, the nursing home did not have a backup generator to run the air-conditioning system.

The subpoena seeks documents that include information about issues such as FPL’s prioritization of power restoration to health-care facilities. In the motion for a protective order, FPL said the nursing home’s subpoena is presumably based on the “argument that FPL is somehow partially responsible for respondent’s failures after Hurricane Irma.”

But FPL contends in the motion that the license-suspension cases is not about the actions of the utility.

“FPL’s response to Hurricane Irma, particularly prioritization of restoring power, is simply not pertinent to respondent’s failures,” the motion said. “Rather, respondent failed to prepare for the storm by not having generator-powered air conditioning and failed to respond to the storm by, among other things, not moving its residents into a safe environment or seeking hospitalization following a temporary loss of power to its air conditioning system. This proceeding is confined to the actions of the respondent, not the actions or inactions of FPL or any other third party.”

The Agency for Health Care Administration issued the license revocation in early October, leading The Rehabilitation Center at Hollywood Hills to file the legal challenge in the state Division of Administrative Hearings. In the challenge, the nursing denied negligence in the deaths and said it “took reasonable and appropriate steps to care for the residents during the absence of power after Hurricane Irma.”